Chapter II: The New Constitution (3)

Of the financial arrangements instituted under the new constitution, my purpose is to say very little. My object is not to show that Mr. Gladstone's financial calculations are wrong, or that they are ruinous to Ireland or unfair to England. All this is for my present purpose immaterial. My aim is to insist that, in their very nature, they are a cause of conflict; and that they bring the interest, and, even more, the sentiment, of Ireland into direct opposition with the power of England.[85]

All the customs payable at every Irish port are to be regulated, collected, and managed by, and to be paid into, the Exchequer of the United Kingdom. Not a penny of these customs benefits Ireland; they are all--and this is certainly the light in which they will appear to most Irishmen--a contribution to the revenue of the United Kingdom, that is, of England. If every taxable article were smuggled into Ireland, so that not one pound of Irish customs were paid to the English treasury, the Imperial power would lose, but the Irish State would gain. Ireland would be delivered from a tax which will soon be called a tribute. If, moreover, Ireland continues to be treated as financially a part of the United Kingdom, then free smuggling, which is free trade, would make Ireland a free port, where might be landed untaxed the goods required by the whole United Kingdom. It is easy to see how the English revenue would suffer, but it is equally easy to see that Irish commerce might flourish. If I am told that the ruin of the British revenue may be averted by the examination of goods brought from Ireland to Great Britain--this, of course, is so. But then freedom of trade within the United Kingdom is at an end. We are compelled, in substance, to raise an internal line of custom houses; we abolish at one stroke one great benefit of the Treaty of Union.

The mode, again, in which the customs are levied outrages every kind of national sentiment. Coast-guards, custom-house officers, and gaugers are never popular among a population of smugglers; they will not be the more beloved when every custom-house officer or coastguard is the representative of an alien power, and is employed to levy tribute from Ireland.

Another leading feature of the financial arrangements is the charging upon the Irish Consolidated Fund of various sums rightly due and payable to the Exchequer of the United Kingdom.[86] They are made a first charge upon the revenue of Ireland. They are to be paid in the last resort upon the order of the Lord Lieutenant, acting as an Imperial officer. The necessity for some arrangement of this kind is clear. Millions have been lent to Ireland, and these millions must be repaid. But if the need for some such arrangement be certain, its desperate impolicy is no less certain. England and Ireland, the English Government and the Irish Government, are brought into direct hostile collision. The rich English Government appears in the light of an imperious creditor the Irish Government stands in the position of a poverty-stricken debtor. Note, and this is the point which should be pressed home, that in all confederations the difficulty of exacting the money needed by the federal government from any state of the confederacy has been found all but insuperable. Study the history of the thirteen American colonies between the time of the acknowledgment of their independence by England and the formation of the United States. This has been termed 'the critical period' of American history. The colonies were united by recollections of common suffering and of common triumph, they were not divided by race or religion; no State aspired to separate nationality, yet they drifted rapidly towards anarchy; they were discontented at home, they were powerless abroad, above all, they nearly made shipwreck on the financial arrangements. Congress was never able, for the satisfaction either of national needs or of national honour, to obtain fair contributions from the different States.[87]

Already, further, before the Home Rule Bill has passed from the hands of the House of Commons Mr. Gladstone's very moderate demands, as they seem to Englishmen, are held by some Irish Nationalists to be outrageous.[88] The difference, moreover, is not a matter of calculation, to be settled by accounts and balances, or disposed of by auditors. No one can read the statements of Nationalists such as Mr. Redmond or Mr. Clancy without seeing that the real difference of view lies very deep. These typical Nationalists do not regard the United Kingdom as a nation. Ireland is the nation. They doubt what is her interest in the British Empire; they believe, and already hint, that the financial arrangements between the two countries cannot be treated as a mere pecuniary transaction. Ireland has been overtaxed and overburdened. She has claims for compensation. All the feelings or convictions which inspired hatred of Irish landlords are already being aroused with regard to the Imperial power. A campaign against tribute may become as popular as a campaign against rent. The two campaigns indeed have a close affinity; a large portion of the tribute is in reality payment in respect of rent, and the instalments which an Irish farmer pays to buy his land will, to him at any rate, appear rent or tribute payable to Great Britain. The rent or tribute will be collected under the new constitution by the Irish Government.[89] No Irish Ministry will relish the position of collector. It would have been difficult for a landlord to collect rent after his agent had publicly announced that it was excessive and unjust. Yet a landlord could dismiss his agent; the English Cabinet cannot dismiss the Irish Government. It is certain too that the Irish Ministry will not find the collection of rent easy. Should the Irish Government state that the rent is iniquitously high, and refuse to collect it, what will be the position of the British Ministry? It must either set the constitution aside or undertake for itself the collection of rent in opposition to, or, at any rate, unaided by, the Irish Executive and the Irish Parliament. No more odious task was ever undertaken by a government. Suppose, however, that things do not come to the worst, the financial arrangements of the Bill ensure that Ireland will soon demand modifications of its provisions. Opposition is a probability, discontent is a certainty.

Ireland is provided under the new constitution with the readiest means of nullifying the Restrictions. The Irish Cabinet and its servants can at any moment reduce an unpopular law to a nullity. Even in England a resolution of the House of Commons may be enough to turn a law into a dead letter. The Imperial Cabinet at this moment could go very near making the Vaccination Acts of no effect, and by declining to have troops sent to Hull could, as I have already pointed out, give victory to the Trades Unionists. Nor is it necessary that the Cabinet should decline sending forces to Hull for the support of the law. An intimation that persons accused of intimidation would either not be prosecuted at all, or if prosecuted and convicted, would be pardoned, would be sufficient of itself to make the strike successful. In no country could the Executive do more to render laws ineffectual than in Ireland. The Irish Cabinet might by mere inaction render the collection of rent impossible; they might, as I have already pointed out, give tacit encouragement to smuggling. If the people regarded a coastguard as an enemy, if he and his family were left severely alone, if he were often maltreated and occasionally shot, his position might be a difficult one, even if supported by the whole force of the state. But if smuggling were regarded as no crime, if the smuggler were looked upon as the patriot who deprived an alien power of a revenue to which England had no right, it is clear that nothing but the energetic support of all the central and local authorities in the country could give a revenue officer the remotest chance of victory in his contest with smugglers. But suppose the national government were apathetic, suppose that the Irish Ministry looked with favourable eye on the diminution of English revenue; suppose that no Irish official gave any aid to a custom-house officer; suppose that, if a British coastguardsman were murdered, Irish detectives made no effort to discover the wrong-doer; and that when the culprit was discovered the Irish law officers hesitated to prosecute; suppose that when a prosecution took place the Attorney-General showed that his heart was not in the matter, and that the jury acquitted a ruffian clearly guilty of murder, is it not as clear as day that smuggling would flourish and no customs be collected? In the same way the Irish Ministry might by mere apathy, by the very easy process of doing nothing, nullify the effect of judgments delivered by the Exchequer judges, and the Irish Ministry would show very little ingenuity if they could not without any open breach of the law impede the carrying out of executions against the goods of persons whom popular feeling treated as patriots.

The Irish Executive might, as already pointed out,[90] easily raise an Irish army. Drilling countenanced or winked at by the Irish Ministry could never be stopped by the British Government. Prussia at the period of her extreme weakness, and under the jealous eye of Napoleon, sent every Prussian through the ranks. Bulgaria raised an army while pretending to encourage athletic sports. The value of the precedent is not likely to escape an Irish Premier.

The Irish Parliament cannot legally repeal a single provision of the constitution, but an Irish Parliament might render much of the constitution a nullity. The Parliament might pass Acts which trenched upon the Restrictions limiting its authority. Till treated as void such statutes would be the law of the land. Such voidable Acts, and even parliamentary resolutions,[91] would go like a watchword through the country and encourage throughout Ireland popular resistance to Imperial law. A profound observer has remarked that people do not reckon highly enough the importance at a revolutionary crisis of any show or appearance of legality.[92] Revolution acquires new force when masked under the form of law. This is a point which Englishmen constantly overlook. They know the moral influence of leagues and combinations; they do not reflect that a Parliament or House of Commons in sympathy with resistance to Imperial demands would possess tenfold the moral authority of any National League. Note too that the Irish Ministry and the Irish Parliament would play into one another's hands, and would further be strengthened by their Irish allies at Westminster, as also by the Irish electoral vote in England.

For the true stronghold of the Irish Government lies, under the new constitution, at Westminster.[93]

There they would command at least eighty votes: the Irish members could still, as now, and far more effectively than now, coerce under ordinary circumstances any Ministry disposed to enforce the rights of the Imperial Government, or, in other words, of England.

Take a concrete case to which I have already referred.[94] Irish farmers who have purchased under the Ashbourne Act grow weary of paying instalments which are equivalent to rent. The Irish Cabinet refuses to collect the rent; it urges its absolute inability to pay the sums due to the Imperial Exchequer and asks for remission. Meanwhile the Irish House of Commons passes a resolution supporting the conduct of the Irish Government. The British Ministers are stern, and reject the request of the Irish Cabinet. The Cabinet at Dublin retire from office. No successors can be appointed who command the support of the Irish Parliament. The Lord Lieutenant advises the Government at home that things have come to a deadlock and that a dissolution will change nothing. Thereupon the Irish members at Westminster begin to move; they threaten general hostility to the British Ministry.

They proffer their support to the Opposition. It may of course happen that the British Ministry can, like the Unionist Government of 1886, defy the Opposition and the Irish members combined. If so the English Cabinet can risk a constitutional conflict in Ireland, though it is a conflict likely to end in disturbance or civil war. But judging the future by the past the eighty members will hold the balance of power. If so their course is clear. They expel from office the Ministers who have protected the rights of the Imperial Government. A weak Ministry depending on Irish votes rules, or rather is ruled, at Downing Street. Every one knows how, under the supposed conditions, the affair will end. There will be a transaction of some sort, and we may be certain that such a transaction will be to the advantage of the Irish Government, and will weaken or discredit Imperial or English authority. We come round here to the root of the whole matter. Were the Restrictions on the power of the Irish Parliament real and easily enforceable, were the obligations imposed upon or undertaken by the Irish people obligations of which an English Ministry could at once compel the fulfilment, Restrictions and obligations alike would be rendered futile and unreal by the presence of the Irish members at Westminster. Every Home Rule scheme which can be proposed is impolitic and is as dangerous as Separation; but the most impolitic of all possible forms of Home Rule is the scheme embodied in the Bill of 1893. Its special and irremediable flaw is the retention of the Irish members at Westminster. This governs and vitiates all the leading provisions of the new constitution. Under its influence every conceivable safeguard, the supreme authority of Parliament, the veto, the legal restrictions on the competence of the Irish legislature melt away into nothing.

They are some of them capable of doing harm, they are none of them capable of doing good.

Cast a glance back at the leading features of the new constitution.

The Imperial Parliament remains in form unchanged, and retains the attribute of nominal sovereignty. But in Ireland the Imperial Parliament surrenders all, or nearly all, the characteristics of true and effective power; it retains in fact in Ireland nothing more than the right to effect under the semblance of a legal proceeding a revolution which after all must be carried out by force. For practical purposes it has no more power at Dublin than it has at Melbourne, _i.e._ it retains at Dublin scarcely any real power whatever.

For the sake of this nominal and shadowy authority the Imperial Parliament is itself transformed into a strange cross between a British Parliament and the Congress of an Anglo-Irish Federation.

The Irish Executive and the Irish Parliament become under the new constitution the true and real Government of Ireland. But the Irish Government and the Irish people are fettered by Restrictions which would not be borne by the Government or the people of a self-governing colony. These Restrictions are ineffective to bind, but they are certain to gall, and if taken together with onerous financial obligations to Great Britain, which whether just or not must have an air of hardness, and with the habitual presence in Ireland of a British army under the direction of the British Executive, lay an ample foundation for the most irritating of conflicts.

The new constitution, lastly, places in the hands of the Irish people ample means for constitutional or extra-constitutional resistance to Imperial, or in fact to English, power, and almost ensures the success of Ireland in any constitutional conflict. The presence of the Irish members at Westminster saves, or proclaims, the nominal sovereignty of the Imperial Parliament; but their presence in truth makes this sovereignty unexercisable, and therefore worthless, and while increasing the apparent power ensures the real weakness of England.

FOOTNOTES:

[25] Thus little, if anything, is said in these pages on the constitution of the Irish Legislature, though it is in several points, and especially in the character of the Legislative Council, open to grave criticism. Little, again, is said of the financial arrangements in their fiscal character. The topic is of the highest importance, but it must be debated in the main by experts. My remarks upon these arrangements refer almost exclusively to the way in which they may affect the working of the constitution. The inclusion of Ulster within the operation of the Bill and the refusal to give weight to the demand of Ulster that the Act of Union should not be touched, are of course matters of primary importance. They ought never to be distant from the thoughts of any one concerned with the policy or impolicy of Home Rule; they dominate, so to speak, the whole political situation; they are constantly referred to in these pages; but they do not form part of the new constitution so much as conditions which affect the prudence or justice of creating the new constitution.

[26] Bill, 1893, Preamble, and clauses 33, 37.

[27] The language of clause 33 is vague, but, according to the best interpretation I can put upon it, its effect as to laws made for Ireland after the Home Rule Bill becomes law will be this: The Imperial Parliament will be able to pass enactments of any description whatever with regard to Ireland, and the Irish Legislature will not be able to repeal or alter any enactments so enacted by the Imperial Parliament which are expressly extended to Ireland. Thus the Irish Parliament might, it is submitted, on the Home Rule Bill passing into law repeal the Criminal Law and Procedure (Ireland) Act, 1887, 50 & 51 Vict. c. 20. But if, after the Home Rule Bill passed into law, the Criminal Law and Procedure (Ireland) Act, 1887, were continued, or after its repeal by the Irish Parliament were re-enacted, by the Imperial Parliament, then the Irish Parliament could not repeal the Act or any part of it. Still clause 33 of the Home Rule Bill is much too vaguely expressed. What, for example, is the effect of an Act of the Imperial Parliament which is 'impliedly' extended to Ireland? If my interpretation of the clause is the right one, the meaning of the clause ought to be made perfectly clear; ambiguity in such a matter is unpardonable.

[28] See pp. 4-6 _ante_. This ambiguity underlies and vitiates almost every argument used by Home Rulers, whether English or Irish, in favour of Home Rule. English Home Rulers emphasise and exaggerate the extent of the control, or the so-called supremacy, which, after the establishment of an Irish Parliament, can and will be exerted in Ireland by the Imperial Parliament at Westminster. Irish Home Rulers, when addressing English electors, or the Imperial Parliament, often use language which resembles the phrases of their English allies. But assuredly Irish Home Rulers, when addressing Irishmen, or when collecting subscriptions from American citizens of Irish descent, speak the language of Irish Nationalists and cut down the effective supremacy of the Imperial Parliament after the granting of Home Rule so as to make it consistent with the war cry of 'Ireland a Nation.' (Compare Cambray's _Irish Affairs and the Home Rule Question_, pp. 48-65.)

[29] Mr. Sexton, Feb. 13, 1893, _Times Parliamentary Debates_, p. 319; Mr. Redmond, Feb. 14, 1893, _ibid_. pp. 350-52; and April 13, 1893, _ibid_. p. 414. Compare especially language of Mr. Redmond, _Irish Independent,_ Feb. 17, and note that all the arguments for Home Rule drawn from its success or alleged success in the British Colonies imply that the relation of the Imperial Parliament to Ireland shall resemble its relation to the Colonies. See generally, debate of May 16 in _The Times,_ May 17, pp. 6-8.

[30] Feb. 13, 1893, _Times Parliamentary Debates_, p. 303.

[31] April 14, 1893, _ibid_. pp. 439, 440.

[32] Feb. 14, 1893, _ibid_. pp. 340, 341, 343.

[33] Bill, clause 12, sub-clause (3).

[34] This is the only sense in which the sovereignty of the Imperial Parliament is inalienable. This should be noted, because a strange and absurd dogma is sometimes propounded that a sovereign power such as the Parliament of the United Kingdom, can never by its own act divest itself of sovereignty, and it is thence inferred or hinted that there is no need for the Imperial Parliament to take measures for the preservation of its supremacy. The dogma is both logically and historically untenable. A sovereign of any kind can abdicate. A Czar can lay down his power, and so also can a Parliament. To argue or imply that because sovereignty is not limitable (which is true) it cannot be surrendered (which is palpably untrue) involves the confusion of two distinct ideas. It is like arguing that because no man can while he lives give up, do what he will, his freedom of volition, so no man can commit suicide. A sovereign power can divest itself of authority in two ways. It may put an end to its own existence or abdicate. It may transfer sovereign authority to another person, or body of persons, of which body it may, or may not, form part. The Parliaments both of England and of Scotland did at the time of the Union each transfer sovereign power to a new sovereign body, namely the Parliament of Great Britain. The British Parliament did in 1782 surrender its sovereignty in Ireland to the Irish Parliament. In 1800 both the British Parliament and the Irish Parliament alienated or surrendered their sovereign powers to the Parliament of the United Kingdom. Compare Dicey, _Law of the Constitution_ (7th ed.), note 3, p. 65.

[35] It may, I am quite aware, be argued that the presence of Irish representatives is not requisite for the maintenance of parliamentary supremacy. In theory it is not. An arrangement might quite conceivably be made (which if Home Rule were to be conceded might be the least objectionable method of carrying out a radically vicious policy) under which it should be distinctly agreed that Ireland should occupy the position of a self-governing colony with all the immunities and disadvantages thereof, and should cease to be represented at Westminster, whilst the British Parliament retained the right to abolish, or modify, the Irish constitution. Such an arrangement would, however, make it perfectly plain that the sovereignty of the British Parliament meant in Ireland what the sovereignty of the Imperial Parliament now means in New Zealand. But 'the retention of the Irish members is a matter of great public importance' (at any rate in the opinion of Mr. Gladstone) 'because it visibly exhibits that supremacy' (_i.e._ the supremacy of Parliament) 'in a manner intelligible to the people.'--Mr. Gladstone, Feb. 13, 1893, _Times Parliamentary Debates_, p. 306. See as to Home Rule in the character of colonial independence, _England's Case against Home Rule_ (3rd ed.), pp. 197-218.

[36] _i.e._ at the moment when these pages are written. What parts of the Government of Ireland Bill may or may not be officially deemed essential by the time these pages appear in print, no sensible man will undertake to predict. Mr. Gladstone's own language is most extraordinary. On the retention of the Irish members, which in the eyes of any ordinary man affects the whole character of the new constitution, and essentially distinguishes the Home Rule policy of 1886 from the Home Rule policy of 1893, he uses (_inter alia_) these words: 'On the important subject of the retention of the Irish members I do not regard it, and I never have regarded it, as touching what may be called the principles of the Bill. It is not included in one of them. But whether it be a principle of the Bill or not, there is no question that it is a very weighty and, if I may say so, an organic detail which cuts rather deep in some respects into the composition of the Bill.'--Mr. Gladstone, Feb. 13, 1893, _Times Parliamentary Debates_, pp. 305, 306. This statement, with the whole passage of which it forms part, is as astounding as would have been a statement by Lord John Russell on introducing the great Reform Bill, that he could not say whether the disfranchisement of rotten boroughs did or did not form a principle of the measure.

[37] Compare Report of Special Commission, pp. 18, 19.

[38] Under the Home Rule Bill of 1893 as sent up to the House of Lords, it would have been the 'constant presence.'

[39] The division of parties in an American State is governed not by questions concerning the internal affairs of the State, but by the questions which divide parties at Washington. State politics depend upon federal politics. 'The national parties have engulfed the State parties. The latter have disappeared absolutely as independent bodies, and survive merely as branches of the national parties, working each in its own State for the tenets and purposes which a national party professes and seeks to attain.' See Bryce, _American Commonwealth_, ii. p. 194.

[40] _i.e._ in 1893.

[41] Mr. Morley at Newcastle, _The Times_, April 22, 1886.

[42] Now Lord Morley of Blackburn.

[43] _i.e._ in 1893, and as they continue to be in 1911.

[44] Mr. Morley at Newcastle, _The Times_, April 22, 1886. [Morley's argument applied primarily, no doubt, to the Home Rule Bill of 1886; its force, however, was infinitely strengthened as applied to the Home Rule Bill of 1893 by the change which retained eighty Irish members at Westminster with unrestricted powers of legislation. The tenor of his argument applies, I contend with confidence, to any Home Rule Bill which shall propose to give Ireland a real Irish Parliament led by an Irish Cabinet, and at the same time to retain representatives of Ireland as members of the British Parliament.]

[45] See p. 43, _ante_.

[46] See Motley's speech, _Times_, April _22_, 1886.

[47] See Bill, Third Schedule.

[48] This is at any rate the opinion of Mr. Redmond expressed in the _Nineteenth Century_, Oct. 1892.

[49] Bill, clause 9, sub-clause (3).

[50] The authors of the Home Rule Bill foresee the possibility of such an erroneous decision. They have carefully provided that such an error shall have no legal effect. Clause 9, sub-clause (4), 'Compliance with the provisions of this section shall not be questioned otherwise than in each House in manner provided by the House,' is in reality a provision sanctioning the grossest unfairness. Its effect is that a British Bill passed solely by virtue of the Irish vote is, on its becoming an Act, good law, in spite of its having been passed in violation of the constitutional rule laid down in clause 9, sub-clause (3), that an Irish member shall not be entitled to deliberate or vote on any Bill the operation of which is confined to Great Britain.

[51] Compare Bill, clause 9, sub-clause (3), and sub-clause (4), which provides that 'compliance with the provisions of this section shall not be questioned otherwise than in each House in manner provided by the House.'

[52] 23 Geo. III. c. 28.

[53] The reader, in order to understand this account of the proposed constitution of 1886, should remember that under that constitution there were in effect, though not in name, constituted three different Parliaments, which must be carefully distinguished.

1. The British Parliament at Westminster, containing no Irish
members, which was to legislate for Great Britain and for the whole
British Empire except Ireland.

2. The Irish Parliament at Dublin, containing no British
representatives, which was to legislate for Ireland, but which was
not to legislate for England, Scotland, or for any other part of
the British Empire, and was not to have any voice whatever in the
general policy of the Empire.

3. The Imperial Parliament also sitting at Westminster, and
comprising both the British and the Irish Parliament. This body
would have corresponded nearly, if not exactly, with the existing
Parliament of the United Kingdom, and was intended to come together
only on special occasions and for a special purpose, namely the
revision or the alteration of the Gladstonian constitution. For the
fuller explanation of the whole of this subject see _England's Case
against Home Rule_ (3rd ed.), pp. 234, 238

Note that England gains little or nothing (as compared with what was offered to her under the Home Rule Bill of 1886) by the Imperial Parliament retaining the power to legislate for Ireland, for even under that Bill the Imperial Parliament (_i.e._ the Parliament at Westminster when consisting both of British and of Irish members) could legislate for Ireland.

[54] _Unionist Delusions_, pp. 6-9.

[55] The following passage from the writings of a man whose words, whilst he was yet amongst us, Unionists and Gladstonians alike always heard with the respect due to sense, to ability, to knowledge, and to fairness, deserves attention:--

'In Mr. Gladstone's proposed measure of Home Rule' _[i.e._ the Bill
of 1886]' the Parliament sitting at Westminster was no longer to
contain Irish members. I hold this to be an essential feature of
the scheme, an essential feature of any scheme of Home Rule. By Mr.
Gladstone's scheme, Ireland was formally to exchange a nominal
voice, both in its own affairs and in common affairs, for the real
management of its own affairs and no voice at all in common
affairs. This is the true relation of Home Rule. As dependent
Canada has no representatives in the Parliament of the United
Kingdom, so neither would dependent Ireland have representatives in
the Parliament of Great Britain. I am unable to understand why this
provision, which seemed so naturally to follow from the rest of the
scheme, awakened so powerful an opposition among Mr. Gladstone's
own supporters. I believe the Irish have no wish to appear in the
British Parliament. They wish to manage their own affairs, and are
ready to leave Great Britain to manage its own affairs and those of
the "Empire" to boot. It is very hard to see in what character the
Irish members are to show themselves at Westminster. If they may
vote on British affairs, while the British members do not vote on
Irish affairs, surely too great a privilege is given to Ireland; it
is Great Britain which will become the dependency. If they are to
vote on "Imperial" affairs only, to say nothing of the difficulty
of defining such affairs, it will be something very strange, very
novel, very hard to work, to have members of Parliament who are
only half-members, who must walk out of the House whenever certain
classes of subjects are discussed.' (E.A. Freeman, 'Irish Home
Rule and its Analogies,' _The New Princeton Review_, vi. pp. 194,
195.)

Mr. Freeman's language proves that I have not overrated the essential difference or opposition between the Home Rule policy of 1886 and the Home Rule policy of 1893.

[56] It is styled in the Home Rule Bill 'an Executive Committee of the Privy Council of Ireland.'

[57] If there were reason to expect (which there is not) that the Home Rule Bill would pass into law, it would be worth while to consider carefully a question which has not yet engaged the attention of English statesmen: Is it desirable that under a system of Home Rule the Irish Executive should be a Parliamentry Ministry? The answer to this question is by no means clear. Both in the United States, and in every State of the Union, the executive power is lodged in the hands of an official who is neither appointed nor removable by the Legislature. The same remark applies to the Executive of the German Empire. In Switzerland the Ministry, or Council of State, is indeed appointed, but is not removable by the Federal Assembly or Parliament. Arguments certainly might be suggested in favour of creating for Ireland an Executive whose tenure of office might be independent of the will of the Irish Parliament. Ireland, in short, like many other countries, might gain by the possession of a non-parliamentary Executive. See as to the distinction between a parliamentary and a non-parliamentary Executive, _Law of the Constitution_ (7th ed.), App. p. 480.

[58] See Bill, clause 14.

[59] This would apparently approve itself to Dr. Nulty, Roman Catholic Bishop of Meath. Of Mr. Justice Andrews he seems to have written that 'this Judge is a Unitarian,' and that it appears to the Bishop that 'the man who denies the divinity of our Lord is as incompetent to form clear, correct, and reliable conceptions of the feelings, the instincts, the opinions, and the religious convictions of an intensely Irish population as if they were inhabitants of another planet.' See _The Times_, April 3, 1893, p. 8, where a correspondent from Ireland purports to give the effect of a pamphlet by Dr. Nulty. The Bishop wrote, I suppose, with a view to Mr. Justice Andrews' opinions as to priestly influence at elections, but the Bishop's words suggest the inference that the government of a Catholic country ought to appoint Catholic Judges. Why should we be surprised at this? Religious toleration is not a doctrine of the Roman Catholic Church.

[60] See Home Rule Bill, 1893, clause 35, p. 214, _post_.

[61] 'I am not suggesting for a moment that we are going to set up in Ireland two independent and separate Executives. I think the granting of Home Rule in any intelligible sense would be entirely incomplete if it were not supplemented by the granting of executive power, and in my judgment the Executive in Ireland is intended to be and must be dependent upon and responsible to the Irish Legislature in Irish affairs. But that does not in the least prevent the retention in the Crown of the executive government of the United Kingdom, as it provided in this Bill such executive authority as is necessary for the execution of the Imperial laws' (sic). Mr. Asquith, April 14, 1893, _Times Parliamentary Debates_, p. 440. Compare _Hansard_, vol. xi. same date, p. 348.

[62] Bill, clause 30.

[63] This is technically expressed in the Bill by the provision that 'the two forces [viz. the Royal Irish Constabulary and the Dublin Metropolitan Police] shall, while they continue, be subject to the control of the Lord Lieutenant as representing Her Majesty.' As to the military or naval forces of the Crown, the Bill contains no provision, but it cannot, it is submitted, be doubted that they will remain subject to the Imperial Government, and, except with the sanction of the Imperial Government, will not be subject to the control of the Irish Executive.

[64] See Bill, clauses 1-5, and as to the Restrictions on its legislative power, see pp. 80-110, _post_.

[65] See two excellent articles in the _Spectator_ of February 25 and March 4, 1893.

[66] Of course all these statements are to be taken subject to the Restrictions placed on the powers of the Irish Legislature by Bill, clauses 3, 4, pp. 197, 198 _post_.

[67] These Restrictions, or safeguards, deprive Ireland of powers in fact possessed by the Legislature of any self-governing colony, and I believe by the Isle of Man or Jersey. [Compare the Home Rule Bill 1893, clause 3, sub-clause (3) (p. 197, _post_,) as it appears in the original Bill, with the same clause as amended by the House of Commons and sent up to the House of Lords. The original clause forbids the Irish Parliament to make any law in respect (_inter alia_) of 'naval or military forces or the defence of the realm.' The clause as amended by the House of Commons forbids the Irish Parliament to make any law in respect of '(3.) Navy, Army, Militia, Volunteers, and any other military forces, or the defence of the realm, or forts, or permanent military camps, magazines, arsenals, dockyards, and other needful buildings, or any places purchased for the erection thereof.'

In 1893, Unionists and Gladstonians alike were determined that on no pretence whatever should an Irish Parliament be allowed to raise an Irish army, even of volunteers. The very name of 'volunteers,' and the history of 1780-82, explain and justify their prudence.

[68] Clause 4, sub-clause (1) to (4).

[69] For the details of the Restrictions contained in clauses 3 and 4 the reader should study carefully the terms of the Bill itself. See Bill, in Appendix.

[70] In more than one case it is pretty clear that the Restrictions are in themselves ineffective. Take these instances:--

1. The Restrictions do not really prevent the drilling of an armed
force. The Act which makes drilling illegal is a statute of 1819,
60 Geo. III. 1 Geo. IV. c. 1. This Act applies to Ireland and
cannot (it is submitted) be repealed by the Irish Parliament. But
this statute of 1819 might easily be evaded, for by sec. 1 meetings
for training and drilling may be allowed by any two Justices of the
Peace. The Irish Executive might, and probably would, appoint
plenty of justices who were willing to allow training and drilling.
The men thus trained and drilled could not, I conceive, technically
be made a volunteer force, but they might, for all that, be a very
dangerous armed body.

2. It is not certain what is the real effect of the provisions
whereby no 'person may be deprived of life, liberty or property
without due process of law.' Does it, for example, preserve a right
to trial by jury? I doubt whether it does. American judgments on
the same words in United States Constitution, Amendments, art. 14,
would of course have no legal authority in the United Kingdom, and
there is a special reason why they often could not be followed. No
process would (it is submitted) be considered in an Irish or
British Court as not a 'due' process, for which a parallel could be
found in the legislation of the Imperial Parliament. But the
Prevention of Crime (Ireland) Act, 1882, sec. 1, to instance no
other enactment, took away the right to trial by jury in cases of
trial for treason, murder, etc.

3. Private property might still in fact be taken without just
compensation. The Privy Council would not apparently have to
consider whether in any given case property was taken without just
compensation, but whether a particular law was a law whereby it
might be taken without just compensation. Suppose, for example, Sir
James Mathew and the commissioners who sat with him were
constituted by an Irish Act a Court for determining what
compensation should be given for the taking of certain property for
public use, and the Act itself provided that just compensation must
be given. It is very doubtful how far the Privy Council could treat
the Act as invalid, or could in any way enter upon the question
whether just compensation had been given. Yet it is plain that such
a Court might give very far from just compensation, say to Lord
Clanricarde.

[71] Constitution, art. i sect. 10.

[72] See Mr. J. Morley, April 18, 1893, _Times Parl. Deb._, p. 500.

[73] See Bill, clause 5, sub-clause (3). The language of this clause disposes of the contention put forward by at least one Gladstonian candidate at the last general election [_i.e._ of 1892], that the veto must of necessity be exercised under the control of the British Cabinet; an arrangement too futile for an ardent Gladstonian to contemplate as possible is therefore actually enacted in the Government of Ireland Bill.

[74] It is to be presumed that the Crown, or in effect the British Cabinet, does not in the case of Ireland retain the power of 'disallowance' under which the Crown occasionally annuls colonial Acts which have received the assent of a colonial Governor. The power to disallow an Irish Act which, though not unconstitutional, has worked injustice, might be of advantage. But in truth the parliamentary methods for enforcing the Restrictions or safeguards are utterly unreal; they do not repay examination; whether there be two sham modes of enforcement, or one, must be to a sensible man a matter of indifference. As to the disallowance of Acts see Rules and Regulations published for the use of the Colonial Office, chap. iii.; Legislative Councils and Assemblies, Rules 48-54; British North America Act, 1868, sections 55-57; _England's Case against Home Rule_ (3rd ed.), p. 33. [Compare Dicey, _Law of Constitution_ (7th ed.), pp. 111-114.]

[75] The appeal to the English Privy Council, both under clauses 19, _22_, and 23 of the Bill, appears to be in each case an appeal to the Judicial Committee of the Privy Council. [The particular provisions contained in the Home Rule Bill, 1893, as to an appeal to the Privy Council, etc., are now of little direct importance, but they are worth study as showing the extreme difficulty of providing any satisfactory body for acting as a Court called upon to decide the numerous constitutional questions, as to the legislative power of an Irish Parliament, which must be raised under any Home Rule Act whatever.]

[76] See Bill, clause 23.

[77] See Tocqueville, _Democratie en Amerique_, i. chap. viii. pp. 231-250; Bryce, _American Commonwealth_, ii. (1st ed.) p. 45; _ibid._ i. ch. 23.

[78] Compare _England's Case against Home Rule_ (3rd ed.), pp. 257, 258.

[79] Compare Bill, clauses 19, 22, pp. 206, 209, _post._

[80] Bill, clause 19, sub-clause(4).

[81] Clause 19, sub-clause (5). The whole of the provisions as to the Exchequer Judges are extremely obscure. The jurisdiction and the powers of the Court, should it ever be formed, will need to be defined by a special Act of Parliament. There are special laws regulating the action of the Federal Judiciary both in the United States and in Switzerland. As the matter at present stands the jurisdiction of the Exchequer Judges and of the Privy Council as a Court of Appeal from them may apparently be thus described.

It extends to all legal proceedings in Ireland which

(i) are instituted at the instance of or against the Treasury or
Commissioners of Customs, or any of their officers, or

(ii) relate to the election of members to serve in [the Imperial]
Parliament, or

(iii) touch any matter not within the powers of the Irish
Legislature, or

(iv) touch any matter affected by a law which the Irish Legislature
have not power to repeal or alter.

It is possible that sub-clause (4) gives the Exchequer Judges a much wider jurisdiction than is intended by the authors of the Home Rule Bill, and the strictures which have been made on this sub-clause deserve attention. My purpose, however, is not to criticise the details of the Home Rule Bill or to suggest amendments thereto. Its fundamental principle is, in the eyes of every Unionist, unsound, and the Bill itself therefore unamendable. My object is simply to describe and criticise the general constitutional provisions of the Bill and to show their bearing and effect.

[82] Compare _England's Case_ (3rd ed.), pp. 258, 259.

[83] See _England's Case_ (3rd ed.), pp. 214-218.

[84] See Home Rule Bill, clause 3, sub-clause (7) (p. 198, _post_), and compare same clause slightly amended, in Bill, as sent up to the House of Lords, sub-clause (8).

[85] These strictures on the financial arrangements which were to exist between England and Ireland apply directly to the Home Rule Bill as introduced into the House of Commons, but they are less applicable to the Bill as amended, more or less in favour of Ireland, before the Bill was sent up to the House of Lords. Compare clause 10 of the original Bill with clause 11 of the Bill as amended and brought up to the House of Lords.

[86] Bill, clauses 14, 15, and 16. [Compare with these clauses of the original Bill clauses 13, 14, 15, and 16 of the Bill as amended before being sent to the House of Lords.]

[87] See Fiske, _Critical Period of American History_, chs. iii. and iv.

[88] See, _e.g._, letter of Mr. Clancy, M.P., on the Financial Clauses of the Home Rule Bill, _Manchester Guardian_, April 4, 1893.

[89] Bill, clause 15.

[90] See pp. 72 and 82, _ante_.

[91] See pp. 79, 80, _ante_.

[92] _Souvenirs de Alexis de Tocqueville_, p. 63.

[93] The reader should note the history of the insurrection in Ticino during 1891. It is quite clear that the Liberals of Ticino who had distinctly broken the law were more or less comforted or protected by the Liberal party in the Swiss Federal Assembly. Compare Hilty, _Separatabdruck aus dem Politischen Jahrbuch der Schweizerischen Eidgenossenschaft_ (_Jahrgang_ 1891).

[94] See p. 103, _ante_. [The force of this illustration has been increased by every Land Act passed since 1893. 'The Imperial Exchequer [_i.e._ in effect Great Britain] has made a free grant of L17,000,000 towards furthering land purchase; moreover to that end it has expressed its willingness to pledge its credit to the amount of L183,000,000 of which over L35,000,000 has already been raised. The Imperial Exchequer looks to the Irish tenant purchaser for the interest and sinking fund on that loan.'--Cambray, _Irish Affairs_, p. 214.]